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The Earl of Mar and Kellie: Can the Minister, in reply, set out how it is possible to access such a referendum?

Lord Ewing of Kirkford: Before my noble friend replies, I believe that the noble and learned Lord, Lord Mackay of Drumadoon, falls into the fatal error that a whole host of Conservatives in Scotland have fallen into. They associate devolution with separation. What the Government are establishing at the minute is not a separate but a devolved Scottish parliament. There is no question in my mind or that of the Scottish Constitutional Convention, of which I had the honour for many years to be co-chairman with my good friend the noble Lord, Lord Steel of Aikwood, that the Scottish parliament should have the right to hold a referendum on the whole question of separation.

The noble and learned Lord, Lord Mackay of Drumadoon, and his colleagues in the Conservative Party in Scotland feed the SNP with sustenance by constantly putting the argument that a Scottish parliament may have the right to hold a referendum on separation. If it was honest, the SNP would argue that a general election was a proper forum in which to hold a referendum on separation.

There is no point in the noble Lord, Lord Mackay of Ardbrecknish, nodding his head in disagreement. In all my experience, down the years in general elections the SNP has argued for separation. I do not think that it would want to deny that. It has been denied that by the Scottish electorate. So where on earth the Scottish Conservative Party gets the idea that if there were a referendum in Scotland on the whole question of separation there would be a different result baffles me completely.

The Conservative Party in Scotland is sustaining the SNP in Scotland by the argument that the Scottish parliament should have the right to hold a referendum on

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whether Scotland should be separate. That is a matter for a general election not for the Scottish parliament. I hope that when he responds my noble friend the Minister will reject this whole question out of hand.

11.45 p.m.

Lady Saltoun of Abernethy: There is just one thing that I should like to say about this matter. In a general election there would be matters at stake other than just the question of separation. There almost always are.

Lord Sewel: I cannot resist the observation that Amendments Nos. 176 and 177 taken together, in the name of the noble and learned Lord, Lord Mackay of Drumadoon, finally produce the empirical evidence for which I have been seeking for a long time; that is, the slightly schizophrenic nature of the Conservative Front Bench facing in opposite directions at the same time.

Lord Mackay of Drumadoon: I am grateful to the Minister for giving way. Perhaps later he could invite his noble and learned friend the Lord Advocate to explain to him the legal concept of the Esto argument.

Lord Sewel: I do not need that, but I still think that it was a temptation that I could not resist.

I shall deal now with the other matters raised in the debate rather than the matter of substance. The noble Earl, Lord Mar and Kellie, asked how such a referendum should be accessed. It is simple: it is through an Act of the UK Parliament, because the union of the kingdoms is a reserved matter.

On Amendment No. 259A, on the issue that there should be a clause in the Bill specifying the ability to hold polls, and the nature of polls, we do not require a provision in the Scotland Bill to hold referendums or polls in respect of devolved matters. Unlike the Welsh assembly, the Scottish parliament already has legislative competence to arrange for any such poll on a devolved matter. That is the basic difference between the Scottish parliament and the Welsh assembly. The Welsh assembly lacks that legislative competence to provide for a poll or referendum on matters for which it is responsible.

I return now to the issue of substance--the holding of a referendum on independence. I wish the Committee to be in no doubt that as the Bill stands the Scottish parliament will not be able to legislate to hold a referendum on independence as the union of the kingdoms is already a reserved matter under Schedule 5. Explicit reference along the lines proposed by the noble Lord, Lord Rowallan, is just not needed.

In determining what relates to a reserved matter, the government amendments tabled to Clause 28 are of help here, because they indicate that we must look at the purpose of what is being done. If the parliament passed an Act to hold a referendum about whether the Union should continue, it would thus clearly be legislating in relation to the reserved matter of the Union. Any such Act would be about the continuation of the Union and it would therefore be beyond the parliament's competence and would not be law.

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Perhaps I may go through the three steps that lead to that conclusion. First, the parliament cannot legislate if the provision relates to a reserved matter. That is Clause 28(2)(c). Secondly, the Union of the Kingdoms of Scotland and England is a reserved matter by virtue of paragraph 1(b) of Part I of Schedule 5. Finally, legislation for a referendum on independence would be legislation about whether the Union should be maintained and would therefore relate to the reserved matter of the Union, and so be beyond the competence of the parliament. That is brought in by the purpose test which we discussed earlier.

I hope that Members of the Committee will be absolutely assured that the parliament does not have the legislative competence to legislate in order to provide for a referendum on independence. On that basis, I hope that the noble Lord will be able to withdraw the amendment.

Lord Rowallan: I thank the Minister for that full explanation, which I am delighted to hear. It gives me great comfort to know that my thoughts and his are one and the same on this issue.

I assure the noble Lord, Lord Mackie, that I am in no way frightened of the SNP. I have always maintained that most people vote for the SNP not for the independence of Scotland but because of the nationalism in the Scottish heart. I do not think that the situation would arise, but it was important for me to know that this parliament will work because the most important thing about the parliament is the unity of the United Kingdom. Taking assurance from the Minister, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

Lord Mackay of Drumadoon moved Amendment No. 175:

Page 64, line 13, at end insert--
("(f) the continued existence of the House of Lords as a civil court of appeal.").

The noble and learned Lord said: While we are taking that dramatic news on board, perhaps I may turn to Amendment No. 175 which raises, in a probing manner, an important point; namely, whether or not the Government accept that there should remain available as the ultimate civil court of appeal in Scottish cases the Appellate Committee of your Lordships' House.

There are differing views as to whether or not that is a necessary implication from the Bill as drafted, in particular the provisions in Schedule 6 to which we shall turn in due course. Paragraph 32, dealing with proceedings in the House of Lords, may imply, if the Bill is enacted in these terms, that the House of Lords should remain available as an appellate court in civil matters albeit that it does not currently discharge such a function in criminal matters.

There is also the practical implication which flows from that: that unless it did so, it is unlikely that any of the Lords of Appeal in Ordinary would be appointed from lawyers who were trained in the law of Scotland, had practised in Scotland as Scottish lawyers, and had sat in Scotland as judges of the Court of Session. Over the years the civil law of both Scotland and England has benefited from the fact that two members of the team of Lords of

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Appeal in Ordinary have by convention been Scottish lawyers. Good ideas have gone from both jurisdictions one to the other, and there is practical benefit from that. In the absence of such Scottish lawyers being Lords of Appeal in Ordinary, the possibility of that occurring might be diminished.

This is an important issue which is causing a measure of interest in Scotland. It is not a matter I should like to press to a Division tonight, but I would be keen to hear the Government's thinking so that it can be considered by the Scottish legal profession over the Recess. I beg to move.

Lord Hardie: This amendment raises important issues about the relationship between the House of Lords and the Scottish court system--a relationship in which the House of Lords is a well-established partner. The noble and learned Lord is concerned that the valuable role played by the House of Lords as a civil court of appeal should be protected. He raised a point about the continued presence of the Scottish Law Lords being protected.

Before dealing with these matters, perhaps I could assist him in relation to paragraph 32 of Schedule 6, where reference is made to the judicial proceedings in the House of Lords. That could of course be a Scottish case, an English case or a Northern Irish case, so that nothing should be taken from that provision to indicate that there would be a continued role for the House of Lords, by implication. It is our intention--

Lord Mackay of Drumadoon: I thank the noble and learned Lord for giving way. I fully accept that the example I gave is not a very good one, but if one takes paragraph 13(b) in Schedule 6, again it has been suggested to me that its drafting, by implication, proceeds on the assumption that while this paragraph is dealing with a court of three or more judges of the Court of Session, from which there is no appeal to the House of Lords, there are other courts of three or more judges of the Court of Session where there is such an appeal. In view of the lateness of the hour I will not go through this line by line, but paragraph 7 on the same page is yet another example of where the drafting suggests, to some people at least, that the existence of the House of Lords as an ultimate court of appeal in civil matters might be inferred.

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